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Mr X and the Health Service Executive (FOI Act 2014)

Case Number: 160006

Whether the HSE was justified in its decision to refuse access in full or in part to certain records from the applicant's files, under sections 15(1)(a), 35(1), 37(1) and 37(3) of the FOI Act.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 21 September 2015, the applicant submitted a request under the FOI Act for access to his records held by the HSE at five locations. In his request, the applicant asked for "a transcript of all patient related documents". The timing of the HSE's responses in the form of original decisions is difficult to determine precisely. It appears that the HSE purported to extend the time of the making of the decision and, with different decision makers involved, depending on the facility which held the records, it seems that the response was not coordinated, and is confusing, at the very least. In any event, the applicant applied for an internal review, on the basis of section 19(1) of the FOI Act, of what he understood to be some decisions on part of his request and deemed refusals of other parts of his request. In his internal review request, the applicant also included a letter of consent from his mother, in relation to records held by the HSE at one location.

Since the HSE did not issue a decision on the internal review request within the statutory time limit, the applicant came to this Office on 25 November 2015 with an application for review, on foot of a deemed refusal of parts of his FOI request.

On 21 December 2015, following correspondence from this Office, the HSE issued a letter setting out its effective position on the applicant's internal review request. In that letter, the HSE stated that its effective position was related to those records held by the HSE at three locations. The HSE stated that some of the records held in the applicant's files were refused in full or in part on the basis of sections 15(1)(a), 35(1), 37(1) and 37(3) of the FOI Act. The HSE also advised the applicant that he should write separately to the remaining two locations for an internal review of those parts of his request.

On 5 January 2016, the applicant made an application to this Office for a review of the HSE's "effective position" decision in relation to the three locations, as referenced earlier in this decision. In relation to the section 37(3) refusal, the HSE, in accordance with section 37(4), offered the applicant an opportunity to nominate a health professional "having expertise in relation to the subject matter of the record", and for that health professional to have access to the records concerned. The HSE stated that the form of access was by way of paper copies of the released records. It said that the handwritten records were legible.

In conducting my review, I have had regard to the submissions of the HSE and the applicant and to correspondence between the applicant and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is concerned with whether the HSE was justified in deciding to refuse and part grant access to records held by the HSE at three locations, on the basis of sections 15(1)(a), 35(1), 37(1) and 37(3) of the FOI Act. It will also address whether, in relation to the method of access to the records, the HSE's approach is justified under section 17 of the Act.

During the course of this review, following queries from this Office, the HSE identified additional records, held in an electronic file. The HSE advised the applicant of the existence of those records and granted access to them.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. However, I wish to acknowledge that the applicant's submissions include references to substantial pain and suffering which he attributes to alleged "malpractice" on the part of the HSE.

I must make it clear that his Office has no jurisdiction to examine, or make findings on the applicant's treatment. This review is confined to consideration of whether the FOI Act entitles the applicant to access the records the subject of the review.

While section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision.

I also note that the records at issue in this case are of a private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Findings

Section 17 - Form of Access
The applicant sought a transcript of the records. Further, he specified that the records should be "unencoded". He referred to sections 17(1)(b) and 17(1)(f). In its decision, the HSE decided to release those records which it did not consider to be exempt in the form of photocopies. It considered that the creation of a printed version was not required as the handwritten records are legible. The applicant argued that this was a refusal to comply with his request for the records and that it was open to the HSE to refuse to provide the records in a particular manner only in circumstances where section 17(2) applied. According to the applicant, a substantial amount of the handwriting in the records is not "readable" and "there is coded information present which is not legible". It is clear that this element of the decision relates to the records and parts of records already released on foot of the HSE's decision and, potentially, to any further records that might fall to be released as a result of my decision on this review.

The question of the manner in which access to records should be provided is dealt with at section 17 of the FOI Act. This section provides that a form of access, other than that specified by the requester, may be given where particular circumstances apply. In the present case the HSE has not made a specific argument under section 17; I think it is safe to assume that it intended to rely on section 17(2)(a). This allows a public body to provide access to records in a form other than that requested where to provide an alternative form of access "would be significantly more efficient".

While it would be possible - albeit with considerable effort and expense in terms of resources - to make typed versions of all the handwritten records, I am satisfied from my examination of them that to do so in respect of all such records would prove a highly inefficient form of access from the HSE's perspective. As regards the "unencoded" information, I cannot find anything in the records that could be held to be "in shorthand or other code" as envisaged by section 17(1)f). It seems to me that it is not unusual to find abbreviations in patient notes and that their meaning would normally be established through the patient's own research with help from their GP or other medical professional. I note also that certain reports in the records include typed synopses of the patient notes. For the HSE, the provision of access by way of photocopies is undoubtedly significantly more efficient than access on the basis of preparing a typed transcript of the patient notes. However, from the applicant's perspective, and having regard to the handwriting involved and the quality of the copies that I have examined, I accept that, in a few instances, the information in parts of the records is particularly difficult to decipher. Although the Act does not expressly identify to which of the parties (requester or FOI body) the test of "significantly more efficient" is meant to apply, it seems to me correct that regard should be had to the requirements of both parties. This suggests, in the circumstances of this case, that some compromise arrangement may be the proper approach.
Having considered the matter carefully, I find that the HSE should provide the following records to the applicant by way of a typed transcript:
'XXXX Chart': records 12, 14, 15, 16, 17, 18, 19, 20.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner[2002 No. 18 M.C.A.] (available on www.oic.ie).

The applicant stated that he visited one of the locations on or around 30 April 2013 and referred to a "clinic's reception diary" as the source of a record of a complaint he made during his visit. The HSE acknowledged that the applicant visited that location in 2013, and records released (e.g. record 40 from March 2013) indicate such attendance. Following a request from this Office, the HSE says that it undertook further searches at the location specified by the applicant and one other, separate Unit. During the course of those searches, additional records were found and, as stated earlier in this decision, the HSE released those records to the applicant.

However, the issue is whether records relating to a complaint made by the applicant, on or around 30 April 2013, are held, or can be found. According to the HSE, the location specified by the applicant keeps records in an 'appointment book' while the other, separate Unit records appointments electronically. The HSE stated also that it records attendance at the location specified by the applicant. It said that such attendance may be recorded by administration staff in a 'room log' and that a room would typically be booked in the name of the member of staff involved. The HSE said that the log book is of a manual nature only and is comprised of A4-sized sheets of loose paper. The HSE stated that those manual paper records are disposed of after a period one year, in accordance with its records management policy, and that the most recent records it holds of attendance at the location specified by the applicant date from January 2015 only.

The HSE did not confirm the existence of a record entitled 'clinic's reception diary'. It stated that it conducted manual searches of current patient files and archived files, and a "search of appointment books from 2013 for each Consultant". The HSE says that it also conducted additional electronic searches. The HSE states "There is no record of any complaint being made around this time following a search of [the] reception message book". It says that all complaints are dealt with under the HSE's Complaint Policy, "Your Service, Your Say", and that if the applicant wishes to make a formal complaint, he may do so under that complaint policy.

The HSE's position is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the HSE to carry out indefinite new searches. In view of the information provided by the HSE relating to the searches undertaken, and having regard to the fact that its recent searches did result in the release of additional records, I consider that it has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find therefore that section 15(1)(a) of the FOI Act applies. In making this finding, I expect that if further records covered by the applicant's request were to come to light at any stage, the HSE would inform the applicant and consider them for release.

Section 37
The HSE refused access to some records in full or in part, on the basis of sections 35(1), 37(1) and 37(3) of the FOI Act. In considering the section 37(3) exemption, I note that the HSE had access to the advice of health professionals. I am satisfied that the most relevant exemption is the section 37(1) provision.

Section 37(1)
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.

The records at issue relate to the applicant and are held in two files, one of which contains 167 records and the other, 65 records. Most of the records were released in full except for 18 records in one file, eleven of which were withheld in part and seven refused, and five records in the second file, which were part granted. I stated earlier that the extent to which I can describe the contents of the records is limited. However, I can confirm that all of the withheld material in the records at issue contains information about persons connected to the applicant's family.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to the records.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Having considered the provisions of section 37(2), I am satisfied that none of those circumstances arise in this case. However, with reference to section 37(2)(b), referred to below, I note that the applicant provided a letter from his mother, stating that she consented to the applicant having access to all records held by the HSE at one location, relating to her. I have taken this into consideration in my examination of the records at issue.

I am satisfied that, (a) the withheld information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I have considered the last circumstance carefully, given the content of the applicant's submission. I conclude that, having regard to the applicant's stated position on the effect of disclosure, the disclosure of the third party information at issue is not necessary to avoid serious or imminent to the life or health of the applicant, or any other individual.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the third parties concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

The applicant states that any information provided by him on his files ought to be released, even if a record referred to other members of his family. In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The information at issue in this case is of a private and personal nature. While there is a public interest in openness and transparency in the manner in which the HSE performs its functions, I am of the opinion that this has been met to some degree by the full and partial release of many of the records at issue. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in its decision to refuse access to the withheld records and parts of records, under section 37(1) of the Act.

Having found section 37(1) to apply to the withheld records, I do not find it necessary to consider the decision of the HSE on the basis of section 35(1), or section 37(3).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE as follows:
- I affirm its decision to refuse access to further records under section 15(1)(a);
- I find that section 37(1) applies to the remaining withheld records and parts of records;
- I annul the HSE's decision in relation to the manner of access to records 12 and 14-20 of a particular file, and I direct that the HSE provide a typed transcript of those records to the applicant within two weeks of the expiration of the time for the bringing of an appeal against this decision.

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator